The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday the Supreme Court opened October Term 2022 with oral argument in Sackett v. Environmental Protection Agency, a case in which the Court is asked (once again) to clarify the scope of federal regulatory authority over wetlands under the Clean Water Act (CWA). In previous posts I discussed the issues in the case, the cert grant, and the decision below.
If oral argument was any indication, the justices recognize the need for greater regulatory certainty, but also recognize the difficulty in drawing a clear line to demarcate where "waters of the United States" end and non-federal waters or lands begin. Much of the argument focused on precisely this question, causing the justices to explore the meaning of the word "adjacent," as the Court previously upheld the EPA and Army Corps' authority over wetlands adjacent to navigable waters in United States v. Riverside Bayview Homes, perhaps the high-water mark of Court acquiescence to broad assertions of federal regulatory power under the CWA. Accordingly, the justices considered whether "adjacent wetlands" must be physically connected to navigable waters, must be neighboring to such waters, or must merely be nearby, and most seemed unconvinced with the answers they received from the advocates.
Over the course of the argument it became rather clear that a majority of the Court is unwilling to embrace Justice Kennedy's "significant nexus" test for federal regulatory jurisdiction. This is significant because the federal government sought to defend this test, as opposed to the more expansive tests urged by the EPA, Army Corps, and Justice Department in prior CWA jurisdiction cases. It seems the "significant nexus" test is simply too malleable and uncertain to constrain federal regulatory authority and provide landowners with sufficient regulatory certainty.
While the justices seemed unlikely to reaffirm "significant nexus" as the relevant test, it was not clear many were sold on the petitioners' proposed alternative, a variant of the test Justice Scalia proposed in his Rapanos plurality, which would generally require a continuous surface connection between wetlands-to-be-regulated and navigable waters. Chief Justice Roberts, in particular, seems surprised that the petitioners would advance a test that would effectively eliminate federal regulatory authority over wetlands with seasonal hydrological connections to navigable waters.
Perhaps recognizing an opportunity to forge a compromise, Justice Kagan (followed by Justice Sotomayor) asked whether there was an alternative formulation that could provide landowners with greater certainty without unduly constraining the federal government's regulatory authority. Neither attorney before the Court offered such an alternative, but it may well be that the justices are looking for such an alternative. In this regard, it seems Justice Kagan was trying to replicate the Court's compromise decision in the Court's last Clean Water Act case, County of Maui v. Hawai'i Wildlife Federation, in which a compromise position captured a six-justice majority.
A few other tidbits:
- In questioning, Deputy SG Brian Fletcher asserted that Congress did not seek to utilize the full extent of its Commerce Clause authority in the CWA, and could have regulated even more expansively. This was a striking claim to make for several reasons. First, in SWANCC, and again in Rapanos, a majority of justices concluded that the scope of CWA jurisdiction had to be construed narrowly so as to avoid raising difficult questions about the scope of the federal commerce power. Moreover, the district court decision that caused the Army Corps to assert authority over wetlands in the first instance, NRDC v. Callaway, said the exact opposite in reaching the conclusion that wetlands are within WOTUS, as have multiple courts since.
- Some of the justices seemed inclined to read CWA Section 404 (g) [42 U.S.C. 1344(g)] as a provision that preempts state regulatory authority. I believe this is a gross misread. 404(g) and the accompanying provisions set up the sort of cooperative federalism structure common to environmental law in which states can obtain authorization to administer a federal regulatory or permitting program under state law (so as to, among other things, reduce local regulatory burdens by avoiding the need for duplicative federal and state permits). As I read it, the relevant language of 404(g) precludes authorizing states to administer a Section 404 program for navigable waters and "adjacent" wetlands. It does not preempt states from exercising such authority on their own.
- Justice Ketanji Brown Jackson did not sound anything like a rookie justice. She dove right into the questioning in her first oral argument and her questions were clear, focused, and sharp. If an unknowing listener had been asked to identify which justice was the newbie, that listener would not have flagged Justice Jackson.
- Justice Sotomayor was not in top form at oral argument. As occurred in West Virginia v. EPA, she misstated things and made confident claims (such as that Congress used the word "abutting" in the CWA) that just are not so. As I noted here, Justice Sotomayor also made some mistakes in the West Virginia v. EPA oral argument.
Although this was the first case heard in this Supreme Court term, I doubt it will be the term's first opinion. The justices have quite a bit to sort out, and this is unlikely to be a unanimous opinion.